Chapter 3

Implementing international law

International law is implemented (a much more helpful notion than ‘enforced’) in many different ways. Most commonly, its rules are simply followed by State officials and others in their day-to-day routines. But sometimes the implementation is more formal and more noticeable.

Translating international law for national courts

The rules of international law are often given effect in municipal law by enacting them in statutes. For instance, in the UK the Diplomatic Privileges Act 1964 gives effect to the obligations of the UK in relation to diplomatic immunities, codified in the 1961 Vienna Convention on Diplomatic Relations; and the State Immunity Act 1978 gave effect to the rules on State immunity as the UK understood them to exist in customary international law, before those rules were codified in the 2004 UN Convention on Jurisdictional Immunities of States.

In the UK rules of customary international law may be applied directly by the courts, but rights and obligations created by treaty can be applied only if they are incorporated by means of legislation into domestic law. In the USA, in contrast, not only may the courts apply rules of customary international law, but the Constitution gives to treaties ratified by Congress a status equivalent to legislation. Whether legislation is necessary to implement customary international law or treaties within a national legal system is, as has already been noted, a matter for the constitutional law of each State. Where legislation is required, the courts will look to the domestic statute, rather than to international law: even some of those participating in a trial may be unaware of the underlying international law that finds expression in the applicable statutes.

It is sometimes suggested that the world would be a better place if all national courts applied international law, and gave it precedence over inconsistent national law. The expectation is that activities such as governmental action in breach of human rights laws, or the conduct of wars in breach of international law, or trade in breach of UN sanctions, could all be struck down by national courts to which, unlike most international courts, individuals would have direct access. But that is not necessarily desirable.

All political structures are built on the human scale. Parliamentary gatherings are of a size, and sessions are of a length, that makes effective communication possible. Governmental structures devolve responsibilities to levels where effective political action and control can be sustained. And, at least in States that maintain some pretension to democracy, political responsibility is secured through an institutionalized relationship that makes dialogue between the electorate and their representatives feasible. So, if people consider that a particular law should be changed, they can bring pressure to bear and the legislature can take appropriate action. People have a measure of control over the laws that the courts apply; and those laws can be tailored to fit the traditions and the situations in each individual State. That kind of political control cannot be made effective at a global level. There is no possibility of citizens having real control over the making of customary international law or of treaties. The direct and automatic application of all rules of international law in national courts is not something that fits together easily with democratic systems of government within individual States.

Sight must not be lost of the fact that international conferences and international organizations are, at heart, no more than gatherings of national governmental officials and their agents and employees. The roles of the international policy-makers may be global, but their lives and careers (with the possible exception of the international civil servants who form the permanent backbones of these organizations) are local, rooted in their home States. They are no more immune from the risk of taking bad decisions in the UN than they are from the risk of taking bad decisions within national governments; and they are no less in need of a system of courts to maintain the Rule of Law. But the impracticability of global structures of political responsibility means that a system of effective judicial review cannot be located at the international level. Better to be able to fight bad policies within national courts, using arguments drawn from international law even if it does not automatically prevail over national law, than to address pleas and petitions to the post-boxes of international organizations. All real political battles are ultimately local.

Compliance and remonstration

What happens if a State breaks a rule of international law? The first point to make is that it is often not entirely certain when a State has broken the law. States are in fact remarkably consistent in conducting themselves in accordance with the established rules, just as individuals generally conduct themselves in accordance with national laws. In the same way that people will voluntarily form and maintain queues, even in the absence of any legal obligation or coercion, States tend to comply with international law. But even where a State does appear to have violated international law, it is often the case that it considers itself to have acted within its rights, and that the immediate dispute concerns what international law requires rather than whether the requirements have been met. The invasion of Iraq by the UK and the USA in 2003 was widely regarded as incompatible with international law; but there is little doubt that many in the governments of those two States were (or allowed themselves to become) convinced that a legal justification for the invasion could be made out.

The second point to make is that the great majority of international differences are sorted out by talking. Multilateral discussions in organizations such as the UN and the IMF; bilateral negotiations between the disputing States; sequences of unilateral speeches, and press releases that clarify the States’ intentions and understandings: all serve to make clear the position of a State that is regarded as being in breach of its international obligations and thus to enable others to decide if any further action is needed. If action is indeed needed, States have a wide range of tools at their disposal.

It is widely supposed that in contrast to systems of municipal law, where wrongdoers are pursued by the police and brought to trial and punished, in international law very little happens if a State chooses not to fulfil its legal obligations. That view is misconceived. Municipal law is not systematically enforced. In the case of criminal law, most estimates suggest that fewer than half of the crimes committed are reported to the police; and of those reported, a suspect is identified only in a minority of cases. More importantly, a wide variety of violations of the criminal law, including domestic violence, so-called ‘victimless crimes’ such as drug offences, road traffic offences, and a good deal of petty theft from shops and employers, are not treated as crimes at all, so that they do not even show up in statistics of ‘unreported’ crimes. And all of this focuses only upon the criminal law. The number of violations of legal obligations that would result if civil wrongs such as trespass, defamation, breaches of contract, and negligence were added to the list, is incalculably high.

It is not intended that every violation of the law should be prosecuted. There are more important priorities on which to spend public money. It is enough that the law is available to be used when necessary, to try to prevent violations from reaching unacceptable levels in particular communities, and to prevent perpetrators of high-profile offences from escaping with impunity. Indeed, even when criminal charges are brought, it is increasingly common to prescribe some remedial sentence, such as attendance at a ‘speeding awareness’ course, instead of a penalty.

International law is no different. There is neither the expectation nor the intention that international law should be enforced on every occasion when it is violated. Many minor violations are willingly tolerated as the products of human frailty, or as not worth pursuing. An accidental trespass a few metres over an international border by armed forces in a remote forested area, or a minor breach of World Trade Organization rules on subsidies to domestic producers, will probably be overlooked because they are the kinds of breach that cause no substantial harm and do not call the basic rules into question. If a breach is regarded as provocative, as in the case of the deliberate overflight of disputed territory by military aircraft for instance, a diplomatic protest may be made. The nuances of international diplomacy, outlined in volumes such as Satow’s Diplomatic Practice, are so well understood that the choices of language, form, author, and recipient of diplomatic communications enable States to signal with considerable precision the degree of outrage or criticism behind the protest.

Protests are by no means insignificant, because disapproval and a cooling of relations between States is not insignificant. There are many ways in which States can make life easier for other States and their nationals even though they are not legally obliged to do so. The amendment of visa requirements, including the difficulty and cost of procedures for obtaining visas; awards of government contracts; the grant or withholding of overflight rights for aircraft: the range of possible measures is enormous, and the cost to the target State of the imposition of such measures can be very high indeed. The imposition of unfriendly measures and the removal of friendly concessions are known as acts of ‘retorsion’ when they involve no breach of any legal obligation. But States may go further.

One of the principles of international law is that where a State is injured by an unlawful act of another State it is entitled to suspend its own performance of some obligation owed to the wrongdoing State, in order to induce the wrongdoer to come back into line with its obligations. Such suspensions of the performance of legal obligations are known as counter-measures. They are, by definition, in one sense themselves breaches of international law (which measures of retorsion are not); but they are justified and rendered lawful by the prior illegal act of the State against which the counter-measures are taken, and are therefore lawful. Counter-measures must be proportionate to the wrong suffered, and must not violate the rules of international law on the protection of human rights and on the use of force. They might include prohibitions on the performance of contracts and other commercial dealings with the target State, for example; and sometimes they are organized as full ‘sanctions regimes’, deliberately designed to apply pressure to the target State to force it to change its ways.

Sanctions are not always directed against States. Individuals and corporations suspected of association with international terrorist groups have also been targeted. Those ‘Al Qaida and Taliban’ sanctions, imposed under a series of UN Security Council resolutions, beginning with resolution 1267 (1999), have attracted some criticism. Individuals are put on to a list by a UN Security Council sanctions committee, on the basis of reports from UN Member States of which only the sketchiest summaries are made available to the people affected, and which may rely heavily upon untested allegations. Once listed, States are obliged to apply the sanctions to the listed people. The affected individuals cannot challenge the sanctions in the UN itself, but may challenge them in the domestic courts of the States that apply them; but there is a strong tendency for national governments and courts to hide behind the authority of the UN and to say that they have no choice but to apply the sanctions. It is an illuminating instance of the problems that can arise from the relationship between international law and municipal law.

Sometimes disputes are serious and intractable and cannot be settled by discussion and the application of indications of discontent and disapproval. States then have a choice as to how they deal with them, just as individuals do in respect of their own disputes. A dispute over a neighbour’s garden hedge or loud parties may be taken off to court, or it may be allowed to simmer, with occasional acts of retorsion such as the nocturnal use of electric lawn-mowers, in the hope that the neighbour will in time become more reasonable. There is a legal route, and a non-legal route; and the offended individual will decide which is likely to be more effective and affordable.

So it is with States. In 1979, during the Islamic revolution in Iran, militant students kept US diplomats and their families hostage for many months in the US Embassy compound in Tehran. After an aborted attempt at a military rescue the United States took the matter to the International Court of Justice (‘ICJ’). That move resulted in a judgment clearly upholding the rights of the US nationals. Coupled with measures of retorsion in the form of a dramatic decline in bilateral US–Iran trade, and the imposition by the USA of a freeze on $12 billion of Iranian assets held in US banks as a counter-measure, the ICJ judgment paved the way for a solution to the dispute, mediated by Algeria and involving the establishment of an international tribunal—the Iran–USA Claims Tribunal, which is still sitting in The Hague—to hear and settle claims by nationals of one State against the government of the other, as well as claims between the two States. The settlement process involved many components: an unsuccessful attempt at self-help, retorsion, counter-measures, litigation, arbitration, mediation. The episode illustrates the range of steps available to States for the handling of international law disputes.

State responsibility

The traditional inter-State model of international law places States in the role of defenders of their nationals. In the words of the Permanent Court of International Justice (the predecessor of the ICJ), in the Mavrommatis case,

It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law.

There is a symmetry here. Just as States may defend the rights of their nationals (be they individual human beings or legal persons such as companies) because an injury done to a national in breach of international law may amount to a wrong done to the national State, so too an action of an individual or corporation may amount to an action of a State. The attribution of acts to States is the concern of the doctrine of State responsibility.

Acts of individuals or corporations are attributable to a State when those acts are exercises of the legislative, executive, judicial, or other ‘governmental’ functions of that State. Each State has the right to choose its own governmental structures as an aspect of the principles of sovereignty and self-determination, and so all levels and designations of national, regional, or provincial and local government are regarded as parts of the government of the State.

All acts of the government are obviously ‘State’ acts, but acts of private individuals are, in principle, not. So, for example, if I am assaulted by a policeman or immigration official in a State, that State is responsible for that action; but if the assault is committed by a private citizen (say, a rioting football supporter) the State is not responsible for the assault—though if the State had foreknowledge of the riot and failed to take reasonable steps to protect persons and property known to be at particular risk, the State might be internationally responsible for that failure.

The responsibility of a State for acts of ‘governmental’ bodies is usually quite clear. But there are difficult cases. Acts of the regular police are plainly attributable to the State, but what about private security guards employed to guard prisoners or public transport facilities or private banks? National courts are plainly State organs, but what about professional disciplinary bodies, or religious courts, that operate within the State? Are the questions whether the postman or a doctor is employed by the State or by a private company, or whether an oil company is owned in whole or in part by the State, relevant to the question of the attribution of their conduct to the State? Questions such as these are addressed by the rules of customary international law which, as was noted, were restated by the ILC in its 2001 Articles on State Responsibility.

Deciding disputes in international law

The settlement of international disputes begins with discussions, often conducted through the Foreign Ministries or diplomatic missions of the States concerned, but sometimes through other appropriate government ministries or agencies. Discussion may settle the dispute; but in any event it is only through discussion that it can be determined what, precisely, is in dispute.

Municipal courts

If discussion fails to resolve the dispute the matter may be sent to a court for decision. Often the first reference will be to a national court. For example, the extradition of General Pinochet from London to Spain was sought in respect of crimes that he was alleged to have committed while he was the Head of State in Chile. The question arose whether he was entitled to immunity as a former Head of State. That question was tried in the British courts, with the case making its way from the metropolitan stipendiary magistrate from whom the arrest warrant was first sought, through the Court of Appeal to the House of Lords. Those courts saw a full and detailed discussion of the international law on the immunities of Heads of State. Though the courts’ final decision was that Pinochet did not enjoy immunity in respect of some of the offences with which he was charged, he was eventually released on medical grounds by the Home Secretary. Had Spain or Chile wished to dispute the decision of the courts or of the Home Secretary, the matter could in principle have been taken further, to an international court or tribunal.

International courts and tribunals

I say ‘in principle’ because, unlike national courts, international courts have no compulsory jurisdiction. A State is only obliged to appear before an international court or tribunal if it has consented to be subject to its jurisdiction.

That restriction is a very substantial constraint upon the jurisdiction of international courts and tribunals; but it should not be overstated. States can, and do, submit to the jurisdiction of international courts in various ways. Thus, under the Statute of the ICJ a State may sign up to accept the jurisdiction of the Court in respect of any legal dispute that another State making a similar declaration may bring against it. Fewer than one-third of States have done that, and many of them have attached exceptions (‘reservations’) to their acceptances. It is more common for States to accept the jurisdiction of the ICJ by adhering to treaties which include clauses which entitle each State Party to refer disputes with another Party arising from the treaty to refer the matter to an international court or tribunal. The 1948 Genocide Convention, for example, which has 146 Parties, provides that any Party may submit any dispute relating to the interpretation, application, or fulfilment of the Convention, including questions of the responsibility of a State for genocide, to the ICJ.

The ICJ is technically the principal judicial organ of the United Nations, as the Permanent Court of International Justice (‘PCIJ’) was in relation to the League of Nations. The PCIJ and ICJ are sometimes referred to collectively as the ‘International Court’ or the ‘World Court’. The International Court sits in the Peace Palace in The Hague (see Figure 5), which was built before the League of Nations was established, and was intended to accommodate the ad hoc arbitration tribunals for which the 1899 Hague Convention on the Pacific Settlement of Disputes provided. The Permanent Court of Arbitration, which was established by the 1899 Convention and which organizes many such arbitrations, still has its seat in the Peace Palace. The International Court is not the oldest judicial forum.

5. The Peace Palace in The Hague. The resemblance to Disneyland is accidental.

Nor does the ICJ have any formal authority over other tribunals. Though some self-contained dispute settlement systems, such as that which forms a part of the World Trade Organization (‘WTO’), have their own appeal chambers, there is no general hierarchy of international tribunals or system of appeals in international law, although in practice most other tribunals show considerable deference to rulings of the International Court. Nor does the International Court hear the majority of international law cases. In fact, only a very small proportion of the cases that are decided by the application of rules of international law are taken to the International Court.

The latter point is particularly important. Most cases in which international law is applied arise in municipal courts and tribunals. Cases concerning applications for asylum and refugee status are a sadly common example: it is the Asylum and Immigration Tribunals which are primarily responsible for adjudicating upon the fulfilment of the legal obligations which the UK, along with 144 other States, undertook by ratifying the 1951 Convention relating to the Status of Refugees (and it is an interesting and instructive way of whiling away an hour or so to look on the internet to see which States have not ratified this and other treaties that safeguard elementary human rights). International law is often at work under the surface of national laws in national courts.

There are, moreover, many international courts and tribunals; and their number is growing. Almost all of them have a limited and specialized jurisdiction, confined to matters such as human rights (the European, Inter-American and African Courts of Human Rights), economic and trade matters (the courts of the regional economic communities such as the Andean Community, the Caribbean Community (CARICOM), the European Union, the Mercado Común del Sur (MERCOSUR), and the Southern African Development Community (SADC), for example), the law of the sea (the International Tribunal for the Law of the Sea (ITLOS)), criminal law (the International Criminal Court (ICC) and the ad hoc tribunals established to deal with war crimes and crimes against humanity in the Former Yugoslavia, Rwanda, Sierra Leone, and Cambodia, for example), sport (the Court of Arbitration for Sport), and intellectual property (the arbitral tribunals organized by the World Intellectual Property Organization (WIPO)). In addition, there are many arbitration tribunals established by agreement on a case-by-case basis in order to decide international disputes.

These specialized tribunals handle far more cases than the ICJ. For example, in 2013, the European Court of Human Rights (‘ECtHR’) received almost 66,000 applications: it disposed of over 93,000 cases, the vast majority of which were declared to be inadmissible, but still had a backlog of around 100,000 pending applications in 2014 (more than half of them against Russia, Italy, Ukraine, or Serbia). The dispute settlement mechanism of the WTO has been invoked in almost 500 cases since its establishment in 1995, in relation to matters such as agricultural subsidies, restrictions on trade in beef from hormone-treated cattle, and China’s exports of footwear.

International tribunals can be divided into two broad categories, depending upon the way in which they relate to States and individuals. Both the ECtHR and the WTO—to take a prominent example of each category—handle cases of direct significance for individuals, but they do so in rather different ways. The ECtHR in Strasbourg handles cases brought by individuals who have been unable to find a legal remedy within the national courts of the State Party to the European Convention on Human Rights against which they complain. The individuals initiate ECtHR proceedings in their own names and they control the litigation, deciding for example whether to press ahead or to settle or abandon the case. The individuals seek the vindication of rights protected by the Convention, such as the right to a fair trial and the right to freedom of expression.

In the WTO system, on the other hand, cases may be brought only by, and against, States (and the EU, which exercises the rights of its Member States in WTO trade matters). It was the USA, for example, and not US farmers, which brought the complaint against the EU restrictions on imports of meat containing artificial hormones. But the underlying structure of the disputes in the ECtHR and the WTO is not very different. The USA was responding to pressure upon its government by its farmers, and the US government was protecting their interests through the WTO. Although the farmers had no individual right to export beef to the EU, the practical result of the WTO procedures was essentially the same as that which would have followed a procedure in which the farmers were asserting their own rights.

The ECtHR is one example, along with human rights tribunals in other parts of the world, and with the hundreds of ad hoc tribunals set up under bilateral investment treaties to adjudicate upon disputes between investors and host States, and with the Iran–USA Claims Tribunal, of a ‘mixed tribunal’ or ‘State/non-State tribunal’—that is, a tribunal in which individuals or corporations have the right to institute and appear as parties in cases against States, calling the State to account for its actions, though only within the scope of the tribunal’s jurisdiction, and on a footing of equality with the respondent State. The WTO dispute settlement procedure, on the other hand, like the ICJ, is an inter-State body: individuals and corporations have no right to invoke the procedure, and they cannot be made defendants in that procedure.

Though there were earlier formalized proceedings for the settlement of international disputes, such as those set up under the 1794 Jay Treaty to settle disputes between the USA and Britain concerning debts and boundaries that had arisen during the American War of Independence, the modern tradition of international courts is usually said to have begun with the tribunal established in Geneva to settle the Alabama claims. Those were claims for compensation made by the USA against Britain for damage caused during the American Civil War to Union shipping by the Confederate warship the CSS Alabama, built in Birkenhead and supplied to the Confederacy in breach of Britain’s obligations under international law as a neutral in the War. The Alabama captured or sank sixty-five merchant ships trading with the Union, before it was sunk off Cherbourg in 1864.

The most prominent international courts and tribunals established in the century after the Alabama claims were inter-State bodies. Cases in which an individual or corporation suffered loss as a result of a breach of international law for which a foreign State was responsible were taken up by the national State of the injured person, in negotiations or before an international tribunal. The more recent trend in the establishment of international tribunals, however, is towards the mixed tribunal model. There are several reasons for this.

First, there is the reluctance of governments to devote scarce public resources to the vindication of the particular rights of an individual or corporation, and to complicate its relations with the respondent State by litigating against it.

Second, as the range of matters regulated by international agreement expands, particularly into areas touching upon commercial and industrial activity, rules of international law have increasingly been addressed directly to the rights and duties of individuals and corporations, rather than States. For instance, States have long been obliged to treat foreign corporations with at least a minimum standard of fairness; but since the 1960s hundreds of bilateral investment treaties (‘BITs’) have been concluded by States which give foreign investors rights to fair and equitable treatment, to non-discrimination, not to have their property expropriated, and so on; and under most of these BITs the investors themselves have the right to institute proceedings against the host State before international arbitration tribunals if they consider that their rights have been violated.

In order to make this shift from an inter-State to a mixed model work, it is necessary for host States to ensure that their national laws do in fact secure the rights that are granted under the BITs, and for corporate officers and their advisers to become aware of the investor’s rights under the BIT. Mixed tribunals thus go hand in hand with what might be called the domestication or internalization of international law—the view that rules and principles of international law are not simply matters of concern to governments, but are of direct and immediate relevance to the decisions and acts of private individuals and corporations. Hence the current importance of regional human rights courts, international investment tribunals, and (on a somewhat different plane, because of the claim of the European Community and European Union that EU law is a legal order distinct from and, within its sphere of operation, superior to, both national and international law) the European Court of Justice.

Individuals are also very obviously engaged by international law in the various international criminal tribunals. The ad hoc international tribunals for the former Yugoslavia and for Rwanda, established by the UN Security Council, revived the vision of legal accountability for those accused of war crimes and crimes against humanity. That vision stood in contrast to the risk of the crimes being committed with impunity, as such people retired (often with a hefty slice of the wealth of their country) to an accommodating foreign State; and it strove to make clear that such tribunals were not instances of ‘victor’s justice’, as some had alleged of the war crimes tribunals established in Nuremberg and Tokyo after the Second World War.

The war crimes tribunals established following the Second World War were the crucial step in ending the paradox that those politicians and military men with the greatest power and responsibility for the direction of war crimes escaped trial, let alone sanctions, for their crimes. But punishment was only a part of their function. Arguably even more important was their role in painstakingly uncovering and recording the truth. Confronting the past remains an important element in the decision to refer cases to international criminal tribunals.

The ad hoc international criminal tribunals were augmented by the International Criminal Court (‘ICC’), established under the 1998 Rome Statute. The ICC has a complementary jurisdiction, prosecuting persons alleged to have committed a listed war crime or crime against humanity within the territory or by a national of a State Party to the Rome Statute but only if the alleged offence is not being genuinely pursued by national criminal authorities. There are also hybrid tribunals, such as the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, which introduce an international element into what are essentially domestic courts, in order to provide some international oversight and objectivity in the trial of serious and acutely political crimes.

Despite this increasing engagement between international law and individuals, however, the particular focus of international law remains fixed upon States. Chapters 4–7 explore some of the ways in which the principles of international law define the structure of international relations.